The Indiana Court of Appeals reversed a grant of summary judgment under the Indiana Tort Claims Act, finding that a sewer district was not immune under the discretionary function.
In Farley v. Hammond Sanitary District, the plaintiffs sued after a rainstorm caused a sewer system to overflow and discharge sewage into homes. The trial court granted summary judgment on the grounds that the sewer district was immune for the manner in which it operated the sewer system. The Court of Appeals, however, determined that there was an issue of fact as to whether the cause of the flooding was the planning decisions as to how to run the system – which would entitle the district to immunity – or was the negligent way maintenance was performed – which would be an “operational” function not entitled to immunity under the discretionary function test.
The Court of Appeals also rejected a claim that the sewage discharge into the homes resulted in a takings, finding that no taking occurred because of the brief amount of time the sewage was present even though it did harm to some of the homeowners personal property.© 2013 BARNES & THORNBURG LLP